EDITORIAL | Instead of fighting medico-legal claims improve quality of healthcare

The issue ofmedical negligencehas plagued the Eastern Cape health department for many years. Its contingent liability stands at more than R40bn. The department has admitted it settled claims totalling R3.462bn between 2014 and 2020.

In 2021 alone, it paid out almost R1bn and had a budget deficit of more than R4bn. Most of these cases concernmedical negligenceduring childbirth, resulting in children being born withcerebral palsyand other complications. The biggest cost driver in these damages awards is the future medical and general care of these children who will, for their entire lives, require medical procedures, occasional hospital care, intensive physical, occupational and other therapy, medicines, and so forth.

This can amount to millions of rand over their lifespan. The department has argued in recent medical negligence claims that it can, at its public hospitals, offer the required care in kind. In other words, it undertakes to provide the specialised care these children will need for the rest of their lives instead of the parent being paid out a huge amount for future private care.

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The Eastern Cape high courts initially balked at this but have since been persuaded that it is the only course to be followed. The department has argued that the medical negligence claims are not budgeted for and take millions away from its other programmes, compromising its ability to deliver on its constitutional mandate of providing free healthcare to all. And so, the Bhisho high court “developed” the common law with reference to the law of damages which requires a “once-and-for-all” lump sum payment for damages proved. That court said that where the health department could show it was able to provide the future medical services needed for the disabled child, it need not pay the exorbitant amounts for future medical expenses.

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